TMI Blog2012 (11) TMI 774X X X X Extracts X X X X X X X X Extracts X X X X ..... this omission there is no need to recall the final order and the same is being decided now. This is a case of evasion of duty by clearances of goods, in a clandestine manner without payment of duty and also by mis-declaring the MRP under the guise of exchange scheme and thereby contravening various provisions of the Central Excise Act, 1944 and of the rules made thereunder, which attract penalty under Clause (d) of sub-rule (1) of Rule 173Q and as discussed above, the duty involved is more than ₹ 1,00,000/-. Confiscation of land, building, plant, machinery of the appellant company under Rule 173Q has been correctly ordered and looking to the nature of the offence, the quantum of redemption fine is not excessive. The same is acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been dismissed, the appeals No. E/4262/04 of M/s. MIRC Electronics Ltd. and No. E/4261/04 of Shri G.K. Mittal have also been dismissed which had not been listed for hearing and, hence, the impugned order dismissing these appeals is also incorrect, that the impugned order has been passed after expiry of 120 days from the date of hearing and, hence, the same is contrary to the provisions of the law as laid down in the case of Anil Roy v. State of Bihar reported in (2001) 7 SCC 318 = 2009 (233) E.L.T. 13 (S.C.) = 2009 (13) S.T.R. 465 (S.C.), that the appellant s submissions have not been considered by the Tribunal, that there was no shortage of the finished goods and upholding of duty demand of Rs. 1,54,175/- on this ground is incorrect, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly in the ROM application filed by the appellant para No. 16 is allowed to be added. 7. Coming to the ROM application amended as above, we find that by the Tribunal s Final Order No. 804/2010-EX, dated 23-11-2010, only the appeal No. 4224/2004 filed by M/s. Onida Saka Limited had been dismissed. The order does not mention the appeal No. E/4262/04 of M/s. MIRC Electronics Ltd. and E/4261/04 of Shri G.K. Mittal and, therefore, there is no question of dismissal of the same. Moreover, we also find that earlier by final order No. 566-568/2009-EX dated 25-8-2009, the appeal Nos. E/4261-4262/2004 filed by M/s. MIRC Electronics Ltd. and Shri G.K. Mittal had been dismissed alongwith appeal No. E/4225/04 filed by M/s. Onida Saka Limited for non-pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2010 in para 5, it has been inadvertently mentioned that the penalty on others has been rightly upheld and in para 6 the last sentence is the appeals are dismissed instead of appeal is dismissed , it does not mean that by this order, the appeals of M/s. MIRC Electronics and Shri G.K. Mittal were also dismissed, as these appeals had neither been listed nor are mentioned in the order and in fact stand dismissed by the Tribunal s final order No. E/4261-4262/04 dated 25-8-2009. The only correction, which is required in this order is that in para 5 of the order after the words the appellant company , the words others has to be deleted and in para 6 of the order, appeals are dismissed in the last sentence has to be replaced by appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se Rules, 1944, we find that there is merit in the appellant s plea, as while in the appeal memo, the question of confiscation of plant and machinery has also been challenged, the final order passed by the Tribunal is silent about the same. However, for this omission there is no need to recall the final order and the same is being decided now, as this question is linked with the question of upholding of duty demand and penalty, which already stands decided, and there is no need to hear the appellant separately for decision on this point. 11. Rule 173Q(2) of Central Excise Rules, 1944, as the same stood during the period of dispute, provided for confiscation of land, building, plant, machinery of a manufacturer in the following circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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